65 S.W. 690 | Tex. App. | 1901
This suit was instituted by plaintiff, the State of Texas, against the defendants, Charles H. Gibson, Henry Sekamp, and the unknown heirs of E.O. Legrand, for delinquent taxes due the State and county on about 2800 acres of the Samuel Monday league in Harrison County, Texas, and on the 25th day of March, 1901, was submitted upon an agreed case to the judge of the District Court of said county, who rendered judgment in favor of appellant for a certain part of its claim, to wit the sum of $129.79 States taxes, and $176.20 county taxes, with a foreclosure of tax lien; and in favor of appellee and against appellant's claim of $220.75, with interest, "railroad subsidy taxes," from which judgment appellant has duly prosecuted its appeal. *356
The case is brought here as an agreed case under article 1414 of the Revised Statutes. The following is the case as presented:
"1. On December 1, 1898, the State filed suit in the District Court of Harrison County, Texas, against Charles H. Gibson, Henry Sekamp, and the heirs of E.O. Legrand for taxes due the State and county on about 2800 acres of the Samuel Monday league in said county. A portion of the tax levied for each year was levied to pay certain bonds, known as the `railroad subsidy bonds.' The following list shows the year, the total tax due, and the amount of the subsidy tax for each year:
Year Total Tax. Subsidy. Net.
1885 ..................... $58.81 $27.97 $30.84 1886 ..................... 59.68 31.76 27.92 1887 ..................... 61.12 36.00 25.12 1891 ..................... 32.34 11.55 20.79 1892 ..................... 30.03 11.55 18.45 1893 ..................... 56.84 21.86 34.98 1894 ..................... 70.04 26.94 43.10 1895 ..................... 40.02 13.12 26.90 1896 ..................... 49.47 17.00 32.47 1897 ..................... 68.38 23.10 45.28 ________ ________ ________ $526.73 $220.75 $306.20
"2. It was shown that in 1873 Harrison County issued $300,000 of railway subsidy bonds under the law of 1871 (Acts of 1871, page 29). In 1880 the county compromised these bonds by issuing new bonds to the amount of $197,000, under the Act of 1879 (Revised Statutes, articles 893 to 901), and the tax was levied on each of the years above named to pay said compromise bonds. Said bonds were all paid off by said taxes, levied and collected in years prior to 1899, and heretofore collected from the taxpayers of the county, and there are now none of said compromise bonds outstanding.
"3. The defendant Gibson set up as a defense: (1) That the subsidy bonds being all paid, the subsidy tax could not now be collected. (2) That taxes due the county more than two years before October 9, 1895, were barred by two years limitation. (3) That all taxes due to the State or county more than ten years before the suit was filed are barred by ten years limitation against all the defendants.
"4. The court sustained defendant's objections to the subsidy tax, overruled all pleas of limitation, and gave judgment as follows:
For State tax .................................. $129.79 County tax ..................................... 176.41 ________ $306.20
"Total to bear 6 per cent interest from this date. The taxes due for 1895 and for each subsequent year to bear 6 per cent interest from the first day of February following the year for which they were due. *357
"5. The State excepted to the ruling that the subsidy tax could not be collected in this suit. The defendant Gibson excepted to the ruling that the taxes were not barred as above claimed.
"6. The evidence showed that Charles H. Gibson owned the land and that Henry Sekamp and the heirs of E.O. Legrand are not shown to have any interest in the land.
"7. Both parties gave notice of appeal. The court foreclosed a lien on the land to secure the taxes. It is agreed that plaintiff's pleadings and evidence are sufficient, unless defendant's contentions are correct.
"8. The parties agree on this statement as an agreed case, to be used on appeal in the place of the pleadings, statement of facts, and bills of exceptions."
Opinion. — Appellant complains that the court erred in holding that it could not recover that part of the county taxes known as the railroad subsidy tax, and in failing to include the amount of said tax in the judgment. It is admitted that this tax was regularly levied and assessed for each of the years set out in the petition, and that at the time of the several levies the subsidy bonds had not been paid. The bonds were all paid off by taxes collected from other taxpayers of the county prior to 1899. It is not contended that the facts did not exist at the time of the levy which made the levy necessary or that the amount of the levy was excessive. The contention by appellee is, that the bonds and debt having been paid, the county has no further interest in the matter, and will not be allowed to collect the tax merely for the swelling of the general fund of the county when the reason for collecting it has ceased to exist. This contention ignores the principle that the burden of taxa-should be borne equally by all taxpayers alike, in proportion to the amount of property owned by each. The Legislature recognized this principle, and seems to have anticipated that a condition might arise in which the levy would produce an excess over and above the amount necessary to pay bonds of this character, and in 1895 made provision for the disposition of such excess by passing the same to the general fund of the county. Sayles' Civ. Stats., arts. 5243n, 5243o. The effect of passing such excess to the general fund of the county was to make an equal distribution of the same for the benefit of the taxpayers in proportion to the amount of their property.
The Supreme Court of Missouri has passed upon this question, and held that the payment of the debt by the county, to pay which the special tax was levied, after such levy and before the institution of suit, did not bar the collection of the tax. State v. Hamilton, 7 S.W. Rep., 583. In that case, as in this, the attempt was made by the defaulting taxpayer to defeat the payment of taxes by showing that the judgment, for the payment of which the special tax was levied, had been paid after the assessment and levy, but before the suit was instituted. The court held that the payment by the State of the judgment rendered against it did not exonerate the defendants from bearing and discharging their share of *358 the public burden. We conclude that the payment of the subsidy bonds by the county, after the assessment and levy of the tax, but before the cause was tried, did not operate as a bar to its recovery in this suit, and the trial court erred in not so holding.
2. The cross assignments of error by appellee raise the following questions: (1) Were the taxes due the county for more than two years prior to October 9, 1895, barred by the two years statute of limitations? (2) Were the taxes due the county for more than ten years before the suit was filed barred by ten years limitation? (3) Were all taxes due the State for more than ten years prior to filing suit barred by ten years limitation? The appellee maintained the affirmative of these questions. It has been held that the statute of limitations will run against a county. Railway v. Travis County,
These remarks dispose of the contention that the taxes were barred by the ten years statute adversely to the appellee. But appellee contends that, independent of the statute, the State may be barred by laches and long delay, and that for this reason the taxes are barred. It has been held that a suit by the State on a tax collector's bond was barred if not instituted within ten years from the time of default thereon. State v. Purcell,
The judgment of the court below will be reformed so as to include the railroad subsidy tax in the recovery by plaintiff, with a foreclosure of lien upon the land described in the petition, and, as reformed, it is affirmed.
Writ of error refused.